The Ontario Government needs to recognize the changing face of parenthood and amend the Children’s Law Reform Act to recognize parents of the same gender and developments in assisted reproduction.

In M. (A.W.) v. S. (T.N.), 2014 ONSC 5420, Mr. Justice Henderson granted an application brought by two married men to be declared a child’s fathers, and to have the surrogate to be declared not to be the child’s mother.

The fathers had arranged with the surrogate to carry the child to term. The egg of an anonymous third party donor was fertilized with the sperm of one of the fathers and was implanted in the surrogate.

All parties were self-represented in this matter. Prior to the pregnancy, they had signed a comprehensive surrogacy agreement and were all still willing to abide by the contract. The surrogate agreed to an order declaring that she is not the child’s mother. The parties just wanted to have their intentions recognized by the government.

The statement of live birth had not been signed and the child’s birth had not yet been registered, as the parties wanted to have the issue of parentage resolved first. The child had been cared for by the applicants since her birth.

The Children’s Law Reform Act, which sets out a number of presumptions as to when a person is considered a “father” under the law did not apply to these circumstances. The presumptions contemplate situations where there is one mother and one father.

Justice Henderson considered the facts, and stated, “In these changing times, court decisions on parentage focus less on the biological connection between child and parent and more on the substance of the relationship.” He granted an order declaring both applicants to be the child’s father, and an order declaring that the surrogate was not her mother.

Present social conditions and attitudes have changed. Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA‘s legislative scheme. Because of these changes the parents of a child can be two women or two men. They are as much the child’s parents as adopting parents or “natural” parents. The CLRA, however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide.

The Court of Appeal found that the gap in the legislation was not intentional, and that the court could use its inherent jurisdiction to fill that gap, so that the child was treated fairly. The intention of the CLRA was to afford children equal status. At the time that it was drafted, according to the court there was no foresight that there could be declarations of parentage for two people of the same gender, but that was a product of the social conditions and medical knowledge at the time.

However, the A. (A.) v. B. (B.) case was decided in 2007. In late 2014, there was still no change to the CLRA, such that in this case, a same-sex married couple had to apply to the court for a declaration of parentage in order to file normal paperwork following a child’s birth. This seems an unnecessary obstacle.

At this stage, the issue is not a surprise. The Ontario Government needs to amend the Children’s Law Reform Act to reflect the social and medical realities of today.

Although they recognize the benefits for kids, parents can sometimes feel that their lives are dictated by children’s extra-curricular activites. Dance classes, hockey practices, guitar lessons, martial arts, and on and on. It’s tough enough in families when the parents are together, can communicate fairly easily about these issues, and can “divide and conquer” to get different children to different events.

However, when parents are separated, there are additional layers of complexity.

Can the parents afford the activity, given the realities of supporting two households? If there are financial challenges, should the parents stretch to meet the expense anyway, so that the child doesn’t have to lose an activity that they love just because of the separation? Is it paid out of regular child support, or is it treated as an extra expense and shared between the parties. If so, who pays what share?

Can the parents commit to getting the child to the activity? There can be multiple challenges with this – for example, children in different activities on the same night. Distance can also play a factor, when one parent moves away and the commute to the activity is challenging.

Dealing with equipment can be challenging – what happens when the goalie equipment or dance shoes are left at one parent’s home, and the child is being brought to the next practice by the other parent?

Do the parents share the same views about the activity? Many times there are disagreements about whether a child should participate in an activity, or the level or participation (for example, house league hockey is all right with one parent, but he or she does not agree with rep hockey).

What about the issue of who may attend? Can either parent attend, regardless of whose night it is? What about grandparents, new partners, etc.?

Competitions and tournaments can throw a wrench into regular schedules. For example, if the parents are spending alternate weekends with the children, and an away tournament requires travel, how will that be handled – which parent will take the child? What about the other children? How will the costs be met?

There is no doubt that these activities are full of potential landmines for separated parents. Details at this level are usually not captured in separation agreements, or if they are, there may have been changes over time as the children’s interests have changed.

In cases where parents get along well, the issues are minimized. However, many people separate because of communication problems. And these continue through separation.

The most important thing to keep in mind is that the children should be free to enjoy the activities that they are enrolled in. They should not bear the responsibility or the worry about the arrangements. That responsibility is on the parents. And the parents need to manage it in a way that protects the children from conflict. They should not be made to feel different from the other kids, because their parents have separated.

When parents are struggling with communication about these issues, it can be helpful to sit down with a mediator to discuss them, and explore options that they may not have considered. A small investment of time and money can prevent a lot of arguments and hard feelings for parents as well as children.

I am happy to report that I have now moved into a new office – same building, just a few floors up. I am at 345 Lakeshore Road East, Oakville, Suite 506.

The move was prompted by the need for more space, so that my colleague, Margot Hallman, and I could be in the same office. We had previously worked from separate offices in the same building, and our assistant spent part of the time in each office. Margot has now moved in, and things are running smoothly.

As Hallman, Paul Dispute Resolution Services, we offer family mediation and arbitration to help families address the challenging issues arising from separation in a respectful way.

Much of reaching resolution has to do with the atmosphere. We have a calming suite of offices with break-out space available, so that clients can have the time and space that they need. Our assistant Stephanie is available full-time for reception and client queries. We can be reached at 905-845-4314 or 905-842-5522.

The Ontario Court of Appeal, in Stevenson v. Smit, 2014 ONCA 521, upheld an agreement by parents that they would share the children’s expenses instead of having Table child support paid under the Child Support Guidelines.

This was not what the father wanted.

At the time of separation, the father had very low income as he was starting a new business. He had substantial assets, and planned to draw down on those assets to meet his obligations to pay for one-half of the children’s expenses. The parties entered into a separation agreement setting out this solution.

Several years went by and the father’s income did not improve. He told the mother that he could no longer share in the children’s expenses. That led to litigation.

The mother brought an application to court asking the judge to decide on the amount that the father owed, so that it could be enforced. The father asked the court to allow him to stop sharing expenses, and to instead pay child support under the Guidelines.

The trial judge found that there was no basis to change the support under the agreement, as there was no material change of circumstances. The father had no income at the time of the agreement, and he still had no income.

The father appealed to the Superior Court and lost. He appealed to the Court of Appeal and lost. The Ontario Court of Appeal found that there was no material change of circumstances, so the father would be held to his agreement to share the children’s expenses instead of paying child support.

The father also argued that the court was required to apply the Child Support Guidelines, and that the material change of circumstance test was irrelevant.

However, the Court of Appeal found that the parties entered into a special arrangement regarding child support, outside the parameters of the Guidelines. The parties were entitled to do so, as the children’s needs for and entitlement to support were not bartered away.

In this case, the children would benefit financially from the arrangement to share expenses, given that the father had little income, so Table support would be very low.

However, if the situation was reversed, and the parties agreed to underfund child support, the decision would likely have been very different.

A good take-away is that parties can be creative in meeting the children’s financial needs, and can deviate from Table support, so long as the children will not be worse off than if support was being paid under the Guidelines.

When parties enter into a mediation process, one of the first things that I usually hear is, “We don’t want to use lawyers, we’ve heard horror stories…”

There is no doubt that the legal profession has a bad reputation when it comes to family law. However, many lawyers do work well to support clients who are going through mediation. And it can be very helpful for parties to receive advice so that they have the legal context for the discussions in mediation.

Although I am a lawyer and I can provide general legal information, I can’t provide legal advice, because that would be a conflict of interest, given my role as a neutral. I recommend that parties going through mediation to obtain independent legal advice as a support to the mediation process.

Let’s look at helpful attributes and business practices for lawyers supporting clients in the mediation process:

Helpful family lawyers:

provide their clients with the advice that they need, so that the clients can negotiate the financial and parenting issues in the mediation sessions.

are available on a timely basis.

do not make the decisions for the clients.

charge reasonable fees for their time and advice (no large retainers).

talk with the mediator if they have any questions about the process or the decisions made.

recognize that parties are free to look at solutions other than what a court might order and that court-ordered solutions come with significant litigation costs and uncertainty.

Some clients refuse to use lawyers. However, if parties do not obtain legal advice before signing an agreement, there is a greater likelihood that the agreement may be set aside at a later date.

The key for most people is to obtain the advice that they need, at a reasonable cost, in a manner that respects their rights to decide their own future.

I maintain a network of lawyers who work well with clients going through mediation, and am happy to provide referrals to these lawyers if requested. I am also eager to hear of clients’ experiences with their lawyers, both positive and negative, so that I can continue to provide the best referrals possible.

Mediation is an excellent way to have the tough talks about “what if”.

Let’s face it, most people deciding to spend their lives together aren’t planning to separate. However, we don’t plan to have our house go up in flames when we buy insurance either. We plan for the worst and hope for the best.

The vast majority of people who separate do not have marriage contracts or cohabitation agreements. For some, that’s absolutely fine, as the default law provides a predictable and balanced outcome.

However, there are many situations when the default law doesn’t meet the needs of the couple. For example, if one person is putting the majority of the funds into the home that the couple will live in. In that case, it makes good sense to have a marriage contract, to establish what will happen with those funds if there is a separation. Not having an agreement can be quite costly.

Raising the issue of a marriage contract can be challenging. It’s not at all romantic. It’s even worse than thinking about preparing a will (which many people also avoid). To some, it signals a complete lack of trust in the relationship.

However, it can be seen as a good opportunity to establish the expectations for the relationship, and to give a level of comfort so that the couple can put any concerns about “what if” aside, and just be together.

Mediation is extremely well-suited to marriage contracts, because the whole idea is to have respectful, well-informed discussions to help in problem-solving. The couple crafts, together with the mediator’s assistance, their mutual expectations. Compare this to one person going to a lawyer and having that lawyer prepare an agreement to be given to the other person. There’s no cooperation, or joint discussion of interests. In fact, receiving correspondence from a lawyer can be unpleasant, no matter how the lawyer tries to be non-threatening.

If a couple works in mediation to come to the terms of a cohabitation agreement or marriage contract, Lawyers would still be involved in reviewing or preparing the draft, based on the decisions made in mediation, and providing independent legal advice to the parties. However, the mediator can help establish expectations and smooth the way for this review process.

Mediation is a much less threatening way than the traditional legal approach to approach the thorny issue of a cohabitation agreement or marriage contract. And then, the couple can put the worry out of their minds, and file the contract with their insurance policy, just in case.

The Federal Child Support Guidelines allow for the sharing of “special or extraordinary” expenses for children, proportionate to their incomes. This is in addition to basic child support calculated under the Guidelines.

The issue of what is “special or extraordinary” comes to court often. Even more frequently, this issue is part of out-of-court discussions, negotiations, and arguments.

Children have so many expenses. What is extra, and what is not? These cases are really fact-specific. Typical section 7 expenses are child care expenses and uninsured medical and dental expenses, however, the list of potential other expenses is limitless.

Justice John Harper of the Ontario Superior Court of Justice found in Marunic v. Liberty, 2014 ONSC 957, that given a total family income of over $120,000 per year, and the fact that the cell phones were used by the father to communicate with the children directly while in the mother’s care, because of poor communication between the parents, that the cell phone costs were “special or extraordinary” under section 7 of the Guidelines. The father was therefore required to pay a share of the costs.

In reaching this decision, Justice Harper considered a decision of the Ontario Court of Appeal, Andrews v. Andrews (1999) 45 O.R. (3rd) 577, where the court set out the requirements for an expense to qualify under section 7:

the expense must be extraordinary;

the expense must be necessary in relation to the best interest of the children; and

the expense must be reasonable having regard to the means of the parents and their spending patters for the children during cohabitation.

He referred to another decision of the Ontario Court of Appeal, Park v. Thompson (2005), 77 O.R. (3d) 601, which found that the cell phones did not qualify as a special or extraordinary expense. However, each case had to be examined on its own facts. In Marunic v. Liberty, they did qualify.

There were other fairly typical claims considered in this case. The mother was asking for contribution to expenses for competitive swimming of $3,030 per year, football costs of $350 per year and a school trip costing $350. The father said that these expenses should be part of base child support, and even if they were not, he did not consent to the swimming expense and it was not reasonable given his income.

Justice Harper noted that there was no requirement that the parents consent to the expense before the child was enrolled in activity. The father did not object to the child participating in swimming, only to sharing the costs.

The swimming, football and school trip costs were found to be extraordinary, given the mother’s income of $80,000, and in the children’s best interests. Those costs and the necessary equipment for the sports were to be shared by the parents in proportion to their income. The resulting cost of approximately $64 per month to the father was reasonable.

Often when parties separate, they include a clause in their separation agreement that says spousal support can end or be reviewed when there is a “material change of circumstances”. What does this mean if the payor chooses to retire?

In the case of Walts v. Walts, Justice Minnema of the Ontario Superior Court of Justice found that the husband’s planned voluntary retirement at age 55 was not a material change of circumstances, and that spousal support was still payable at the same rate as if he did not retire.

In this case, the parties had been married for 29 years. The husband was now 55 years old and the wife was now 53 years old. They separated in 2008, and agreed to spousal support of $1,584 per month based on his employment income of $87,763, and her disability income of $24,771. There were some minor adjustments over the years to keep up with the cost of living. The husband’s pension entitlement had been divided after separation, however, the wife could not yet access it.

The husband stated that he had always intended to retire at age 55. Since separation, he had a heart attack, and that reinforced his wish to retire.

The judge found that the medical evidence did not establish that the husband needed to retire for health reasons. The retirement was voluntary.

The test for a “material change of circumstances” is set out by the Supreme Court of Canada in Willick v. Willick as,

a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

In this case, because the husband’s retirement was anticipated at the time of separation, it was not a material change of circumstances, and therefore could not be the basis for a change in spousal support.

To the husband’s credit, he brought this motion before he actually retired, so that he still had employment income from which to pay support.

The lesson here is that, especially in long-term marriages with indefinite spousal support obligations, it is extremely important to deal with the issue of retirement in the separation agreement. Retirement is foreseeable, and therefore the parties’ intentions about the timing of retirement and its effect on spousal support need to be dealt with when the agreement is negotiated.

The new year is a time to organize, and plan forward. We often make resolutions, trying to make this year better than the last.

Separated parents can use this time to set expectations for the upcoming year, and avoid last-minute conflicts.

If you already have a schedule in place for your children, you could look at where the holidays will fall, and plan around them as necessary. For example, where are the children for Easter? Do any changes need to be made in the days before or after? When are extended family celebrations? These issues are much easier to resolve now than they are the week before the holiday, when extended family plans have already been made.

If parents are able to communicate reasonably well, an initial planning meeting early in the year may be a good idea. Once the tentative plans are made, online calendars can be helpful for updates and reminders.

If you are not at a point where an in-person meeting is comfortable, initial plans could be made by email, or with the assistance of a mediator.

Google Calendar is an online free resource where parents can establish and update a calendar for the children. This can be helpful not only for the regular schedule and holidays, but also for information about school trips, events, extra-curricular activities, and children’s social activities.

There are other more specific tools for separated families, including Our Family Wizard, ShareKids and Two Happy Homes. There are fees for some of these services, but they are worth exploring to see if your family would benefit from the added features.

Parenting through separation is challenging. The best gift that you can give your children is reduced conflict. By planning ahead of time, you can take the first step down that path.

Advances in technology have brought huge opportunities for family mediation. Video and audio conferencing, and shared document and calendar programs provide options to separating couples that help them come to agreement and minimize conflict.

In negotiating separation agreements, it is usually best to have the parties together in the same room, as the subtleties of communication are more apparent, and there are fewer barriers to coming to resolution.

However, with the many demands on our time, including work and travel, sometimes being able to sit in the same room at the same time is just not possible, or would lead to unnecessary delays. When this is the case, options such as video or audio conferencing should be considered. Recent technological advances have made these options much more accessible. A person with an internet connection and computer or tablet can use Skype, GoToMeeting, or a similar platform, and be in the same room as the other party and the mediator for no additional cost to the participant.

Other online options, such as sharing disclosure documents through services such as Support Information Exchange, looking at joint calendars through services such as Google Calendar, Our Family Wizard, or Two Happy Homes, should be considered in appropriate cases. These, or similar services can help reduce conflict by providing some structure and a layer of accountability.

Online Dispute Resolution was a major topic at the recent annual conference for the Association of Family and Conciliation Courts in Los Angeles. The number of products available has increased dramatically over the past several years, and innovation in this area continues.

With mediation, we need to be creative both in designing the process to be followed as well as in generating possible outcomes. The solution must fit the family. Fortunately, the options are expanding.